General legal framework

• Author: Ouhnaoui, Hania; Bribosia, Emmanuelle; Navasartian, Areg; Rorive, Isabelle
• Pages: 20-20

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1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The constitution of Belgium includes two main articles regarding non-discrimination.

Articles 10 and 11 guarantee equality before the law and enjoyment without discrimination

of the rights and freedoms accorded to all, without specifying a list of prohibited grounds

of discrimination. These equality clauses are of general application, without any restriction

as to the grounds on which the discrimination is based (they require the principle of

equality to be respected in relation to all grounds). There has been case law with respect

to the discriminatory grounds of the equality directives.

These provisions apply to all areas covered by the directives. Their material scope is

broader than those of the directives. They are applicable to all contexts, going beyond not

only employment and occupation, but also the scope of Directive 2000/43/EC.

The constitutional anti-discrimination provisions are directly applicable. Their main

importance lies in the fact that legislative norms adopted either by the Federal state

(Lois/Wetten) or by the regions or communities (Décrets/Decreten or

Ordonnances/Ordonnanties), and regulations adopted by the different Governments

(Arrêtés royaux/Koninklijke besluiten when adopted by the federal Government, Arrêtés

du gouvernement de la Région/Besluiten van de regering when adopted by the

Governments of the regions), must respect the constitutional principle of equality. Respect

for the constitutional principles of equality and non-discrimination is ensured by the power

accorded to every person with a legal interest to seek the annulment of a statutory law or

an executive regulation, respectively, before the Constitutional Court or the Council of

State (Conseil d’Etat/Raad van State – Supreme Administrative Court). Moreover, if a

jurisdiction entertains doubts as to the compatibility of a legislative norm (federal act or

decree), it may submit the question to the Constitutional Court by a referral procedure,

and the Court may then consider a piece of legislation invalid if it is found to violate the

constitutional principles of equality and non-discrimination.

These provisions can be enforced against private individuals (as well as against the state).

However, because of their very general formulation and the lack of a general horizontal

effect in the field of private relationships, these clauses are not used in pratice to protect

an individual from private acts of discrimination by an employer or another private person.